Consumer Finance Monitor

James Fallows Tierney, a Chicago-Kent law professor and former SEC attorney, discusses his eight-year study of class action waivers and arbitration. He explains how stock-market event studies tracked 11 regulatory developments, measured investor reactions, and separated arbitration effects from broader CFPB news. The conversation explores what markets reveal, the study’s limitations, and future applications to consumer-finance policy.

Mohsen Manesh, a University of Oregon law professor and authority on shareholder disputes, examines SpaceX’s groundbreaking bylaws. The conversation explores arbitration, class-action waivers, Texas Business Court requirements, Securities Act claims, and shareholder consent. It also considers Delaware’s corporate-law restrictions, Texas’s rise as a rival chartering destination, Elon Musk’s influence, and whether other companies will follow SpaceX’s lead.

In our Consumer Finance Monitor podcast show being released today, our special guest John McNamara, Chief Growth Officer at Avtal (a fintech and software as a service (SAS) company that provides an AI-powered, white-labeled digital engagement platform to help third-party consumer debt collection agencies automate communication and process self-service payments) and a former CFPB senior official who played a significant role in developing Regulation F promulgated under the Federal Fair Debt Collection Practices Act explained that the debt collection industry needs to distinguish genuine AI applications from the marketing hype surrounding the technology. He also emphasized that the use of AI must be accompanied by careful attention to data governance, explainability, consumer protection, and human oversight. Our show is hosted by Alan Kaplinsky, founder and former leader for 25 years and now Senior Counsel of our Consumer Financial Services Group. Key Topics Discussed: · Where AI is being used in debt collection · Consumer-facing AI presents greater risks · AI can also improve consumer outcomes · Data governance may be the most important issue · The "black box" problem · Hallucinations and the importance of a human in the loop · Vendor management remains critical · AI may become infrastructure rather than a separate technology The central lesson from McNamara's discussion is that responsible deployment should begin with the use case rather than the technology. Companies should ask what they are trying to accomplish, what data is actually necessary, what legal authority they have to use that data, whether the system's output can be understood and defended, and where human oversight is required. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

In the Consumer Finance Monitor podcast we are releasing today, Alan Kaplinsky, founder and former chair for 25 years and now Senior Counsel of the Consumer Financial Services Group, spoke with Professor Mark Bartholomew of the University at Buffalo School of Law, co-author with Professor Samuel Becher of "The End of Shopping," a forthcoming article in the William & Mary Law Review. The article explores how autonomous shopping agents could transform consumer commerce and raises fundamental questions concerning consumer autonomy, privacy, competition and consumer protection. The implications for financial services are especially significant. Consumers could use AI agents to select credit cards, auto loans, mortgages, insurance policies, bank accounts, certificates of deposit and investment products. An agent potentially could compare thousands of offerings in seconds and execute a transaction that a consumer might otherwise never undertake because of the time and complexity involved. For banks, lenders, insurers, credit-card issuers and investment firms, agentic AI could reduce customer-acquisition costs, increase switching and intensify competition. But it also could make technology companies the principal gatekeepers between financial institutions and their customers. The company controlling the agent could determine which products consumers see, how those products are compared and whether a particular provider receives the consumer's business. Agentic AI also presents difficult legal and policy questions. Who is responsible when an AI agent makes a mistake? What happens when an agent has a financial incentive to steer a consumer toward a particular provider? Are existing disclosure, fair-lending, privacy, advertising and investor-protection rules adequate when the "consumer" making the initial decision is effectively an algorithm? Key Topics Discussed: · Why Financial Services May Be an Especially Attractive Use Case · Implications for Banks, Lenders, Insurers and Investment Firms · Who Is Making the Decision? · Conflicts of Interest and Self-Dealing · Consumer Protection Law May Have to Change · Fair Lending, Insurance and Investment Concerns · The Need for Guardrails · Competition and Data Portability · Privacy and Cybersecurity Risks Will Increase · What Should Financial Institutions Do Now? · Do We Need a New AI Regulator? · Don't Lock in the Wrong Rules · What Does the Future Hold? Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

The future of the Consumer Financial Protection Bureau (CFPB or Bureau) has rarely been more uncertain. Since its creation, the CFPB has been at the center of intense political and policy debate, with its priorities changing dramatically as administrations change. The events of the past year or so under the leadership of Acting Directors chosen by President Trump, however, have taken that policy whiplash to a new level. In our latest Consumer Finance Monitor podcast released today, Alan Kaplinsky (the founder and former leader for 25 years of the Consumer Financial Services Group at our firm) was joined by two former CFPB officials with decades of experience inside the Bureau: Jason Brown, a visiting fellow at the Brookings Institution and former CFPB Assistant Director for Research, and David Silberman, former Acting Deputy Director and longtime Associate Director for Research, Markets and Regulation. We discussed their recent Brookings commentary, "The CFPB: Where to Go From Here," which proposes a series of structural reforms designed to make the Bureau a more stable and effective financial regulator. Their recommendations are noteworthy not because they seek to preserve every aspect of the CFPB as it has operated in the past. Rather, they focus on a more fundamental question: How can the CFPB carry out its statutory mission while allowing presidential administrations to pursue different policy agendas without repeatedly dismantling and rebuilding the agency? Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

National bank preemption is headed toward another Supreme Court showdown. The Second Circuit has held that New York's mortgage escrow-interest requirement is preempted, directly conflicting with the First Circuit's decision upholding a comparable Rhode Island requirement and the Ninth Circuit's decision allowing a similar California law to remain in effect. The OCC has sided with the Second Circuit, issuing final preemption regulations concluding that state laws requiring national banks to pay interest on mortgage escrow accounts are preempted. In the latest episode of the Consumer Finance Monitor podcast released today, Alan Kaplinsky (founder and former chair for 25 years, and now Senior Counsel of our Consumer Financial Services Group) is joined by Professor Emeritus Arthur Wilmarth of George Washington University Law School to discuss the Second Circuit's post-remand decision in Cantero v. Bank of America, the Supreme Court's 2024 decision in the case, the conflicting decisions in Conti v. Citizens Bank in the First Circuit and Kivett v. Flagstar Bank in the Ninth Circuit and the OCC's The immediate dispute is whether national banks must pay interest on residential mortgage escrow accounts under state law. The broader question is whether state consumer financial laws (other than state usury laws) may regulate national banks and, if so, when those laws are preempted by the National Bank Act. With certiorari petitions pending in Cantero and Kivett, further proceedings in Conti potentially bringing that case back before the Supreme Court, and the OCC's regulations now under challenge by ten state attorneys general, the circuit split and the OCC's intervention make another Supreme Court review increasingly likely. Our podcast with Professor Wilmarth explores these issues in depth and provides an important perspective on what could become one of the most significant national bank preemption disputes in years. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

Disclosure has long been one of the principal tools of consumer protection. The basic premise seems straightforward: if consumers are given better information about the terms of a transaction, they should be able to make better-informed decisions. But what if better disclosure works differently for different consumers? And what if a disclosure that improves decision-making overall can, in some circumstances, actually worsen outcomes for financially vulnerable consumers? Those are among the important and provocative questions explored in the latest episode released today of the Consumer Finance Monitor Podcast, hosted by Alan Kaplinsky (founder and former chair for 25 years and now Senior Counsel of the Consumer Financial Services Group at our firm) Alan's guest is Professor Florencia Marotta-Wurgler of NYU School of Law, a leading scholar of consumer law, behavioral law and economics. We discuss her new article, "The Distributional Costs of Effective Consumer Regulation," co-authored with Tamar Kricheli-Katz. The article is available for free on SSRN. The article challenges the conventional way regulators and academics have evaluated consumer disclosures. Rather than simply asking whether disclosure "works," the authors ask a more nuanced question: for whom does it work, under what circumstances, and at what cost? Key Topics Discussed Include: · Better disclosure can reduce mistakes, but not necessarily for everyone in the same way · When salience changes the trade-off · The implications for regulators · What does this mean for behavioral regulation? · A broader lesson about disclosure Professor Marotta-Wurgler's research is particularly compelling because it challenges the assumption that making information more effective is necessarily an unqualified good. Sometimes, a disclosure may not merely inform consumers. It may change what they focus on, how they perceive trade-offs and ultimately what choices they make. That is a lesson regulators, policymakers and industry participants should keep in mind as they design the next generation of consumer protection disclosure rules. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

In the latest episode of the Consumer Finance Monitor podcast that we are releasing today, we explore a topic that is becoming increasingly important for financial services companies and virtually every other business operating in today's digital economy: how privacy, cybersecurity, and AI governance can be transformed from compliance obligations into sources of customer confidence, resilience, and competitive advantage. Alan Kaplinsky (founder, founder lease for 25 years and now Senior counsel of our Consumer Financial Services Group) hosts and interviews our guests. Our guests are Amy Reeder Worley, managing director at BRG and author of a new book entitled The Confidence Advantage: Optimizing Privacy, Cybersecurity, and AI Governance for Growth, and Greg Szewczyk, chair of Ballard Spahr's Privacy and Data Security Group. Amy advises senior executives and boards on cybersecurity, privacy, and AI risk, while Greg regularly counsels clients on privacy, cybersecurity, data governance, incident response, and the rapidly evolving legal issues surrounding AI. Amy's book is available on Amazon. Key Topics Include: · From "trust" to evidence-based confidence; A central concept in Amy's book is the distinction between trust and confidence. She describes trust as a feeling, while confidence is an evidence-backed belief. · Breaking down privacy, cybersecurity and AI silos; discussion about the need to move away from treating privacy, cybersecurity, and AI governance as separate disciplines operating in organizational silos. · "Confidence by design"; Amy describes a framework she calls "confidence by design." · The danger of the "FOMO" approach to AI; what Amy describes as the "FOMO" approach to AI: moving as quickly as possible to deploy AI tools and planning to establish governance later. · Where should companies begin?; For organizations that are just beginning to address these issues, Amy's advice is surprisingly basic: start by determining what data the company has and where it is located. · Boards need to know who owns the risk; discussion on the growing role of boards and senior management. · Governance as a competitive advantage; Perhaps the most important message from the podcast is that good governance should not necessarily be viewed as a cost center. · A rapidly changing legal landscape; the extraordinary uncertainty surrounding AI regulation. We encourage our readers and listeners who are interested in these issues to listen to the full episode and to consider reading Amy's book, The Confidence Advantage: Optimizing Privacy, Cybersecurity, and AI Governance for Growth. It provides a useful framework for thinking about an issue that is quickly moving from the privacy and technology departments into the boardroom. Consumer Finance Monitor is hosted by Alan Kaplinsky, Senior Counsel at Ballard Spahr, and the founder and former chair of the firm's Consumer Financial Services Group. We encourage listeners to subscribe to the podcast on their preferred platform for weekly insights into developments in the consumer finance industry.

John Culhane, consumer-finance regulator expert; Richard Andreano, mortgage-lending authority; Dustin O'Quinn, immigration lawyer. They unpack the CFPB’s guidance linking immigration status to ability to repay. Discussion covers credit card vs mortgage ATR timing, non‑binary immigration categories, ITIN implications, fair‑lending and state law conflicts, and operational underwriting challenges for lenders.

Delicia Hand, leader of AI policy at Consumer Reports and digital civil rights expert, discusses how AI is transforming consumer finance. She covers widespread consumer distrust about bias and weak legal protections. Conversations focus on rapid AI rollout driven by competition, algorithmic pricing, AI in underwriting, data-aggregation privacy risks, and the need for explainability, human review, and clearer accountability.